Secretary of State for the Home Department v PG (Jamaica)

When applying Exception 2, the court must assess the actual effect of deportation on the qualifying child or partner. The question is whether the resulting harshness exceeds that necessarily involved when any foreign criminal with a genuine family relationship is deported. The seriousness or age of the offending is not balanced against the family consequences at this stage, apart from the statutory distinction based on sentence length. Ordinary distress, family disruption, loss of parental support and the increased burden on the remaining parent do not, without more, meet the threshold. Both the destination-country and separation limbs of paragraph 399 must be considered.

PG, a Jamaican citizen, was made subject to an automatic deportation order after receiving a three-year and four-month sentence for supplying Class A drugs, followed by further offences. The First-tier Tribunal allowed his Article 8 appeal, principally relying on the effect of deportation on his partner, SAT, and their British-born children. The Upper Tribunal upheld that decision. The Secretary of State appealed, arguing that insufficient weight had been given to the public interest and that the evidence did not justify a finding of undue harshness. The second ground was not pursued after the Supreme Court decision in KO (Nigeria). The central issue was whether the evidence rationally supported a finding that deportation would be unduly harsh for SAT or the children.

Appeal allowed unanimously. Holroyde LJ delivered the lead judgment, with which Hickinbottom LJ and Floyd LJ agreed. The decisions of the First-tier Tribunal and Upper Tribunal were set aside and the deportation order was restored.

1. Under section 117C(5) of the Nationality, Immigration and Asylum Act 2002, read with paragraph 399 of the Immigration Rules, the court must focus on the factual effect of deportation on the qualifying partner or child. The assessment asks whether the harshness goes beyond that necessarily involved for any partner or child of a foreign criminal facing deportation. It does not require balancing the seriousness of the offending against the family consequences. This followed the approach in KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53 and displaced the approach in MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 450.
2. Both paragraph 399 limbs must be considered: whether it would be unduly harsh for the partner or child to live in the country of deportation, and whether it would be unduly harsh to remain in the United Kingdom without the deported person.
3. The evidence established that deportation would cause distress and make family life more difficult. However, the difficult period experienced by one child, a knife incident, the loss of the father's support, and the increased practical and emotional burden on SAT were commonplace consequences of deportation. They did not take the case beyond the necessary degree of harshness. The passage of time and the nature of the later offending could not assist at this stage.
4. The evidence concerning the other British-born children was insufficient to justify a different conclusion. Since Exception 2 was not established, and Exception 1 was not suggested, section 117C(3) required deportation. On the evidence, there were also no very compelling circumstances over and above paragraphs 399 and 399A. There was no rational foundation for the lower decisions and no reason to remit the case for rehearing.

1. Court of Appeal (Civil Division): allowed the Secretary of State's appeal, set aside the decisions below and restored the deportation order, [2019] EWCA Civ 1213.
2. Upper Tribunal (Immigration and Asylum Chamber): dismissed the Secretary of State's appeal and upheld the First-tier Tribunal's decision on 24 January 2018.
3. First-tier Tribunal: allowed PG's appeal against the deportation order on 11 September 2017.
4. Earlier proceedings: an initial First-tier Tribunal decision of 24 September 2015 was set aside by the Upper Tribunal on 1 May 2017, and the case was remitted for rehearing.